Time for a mobile patents summit

Mobile patent holders can either negotiate their rights for the best deal they can get or let the lawyers get most of it.

The mobile patent war has entered its silly season.

As Florian Mueller notes it seems a new suit is being filed every day. Most recently, Microsoft sued Motorola over its patent terms.

It reminds me of something we're going to see in baseball soon. Free agent season starts when players announce they have chosen to sign with the highest bidder. This leads to weeks of suspense as the player reporters consider the "premier" free agent negotiates a contract, after which the others sign in due course.

The key word there is negotiates. Baseball has gone through strikes and baseball has gone through lawsuits. Baseball knows negotiation is cheaper.

This is a lesson smart phone makers should heed. Lawyers cost money, but lawyers can do more than litigate.

Lawyers can negotiate.

There are two ways this can get done.

One is to negotiate a settlement on some central claim -- say that between Apple and Nokia since that process is well along -- then line up other settlements based on it. That would be the baseball way. The biggest free agent signs first, and then everyone else goes.

(Football fan? Think about how top draft choices negotiate their contracts. Or if basketball is your thing, note that other free agents waited until LeBron James made his decision. Soccer fan? Ronaldo.)

Another way to go about it would be to have everyone's lawyers fly out to Hawaii, get a conference room in a nice hotel (like the Royal Hawaiian, shown above, from Wikimedia), and no one gets to go to the beach or the pool or get so much as a single Mai Tai until we have a deal. (No little umbrellas in the Coke either. Just water. In nasty little plastic cups.)

Perhaps a treaty that defines what "reasonable and non-discriminatory" treatment means in this space, and sets terms by which all the suits can be settled, is the way to go.

I know. Each one of these suits is different. Oracle's suit against Google involves Java. Microsoft's suit against HTC involves syncing e-mail. NTP claims to own the whole syncing process. They all think their patents control the market.

Nonsense. These are assets. Their value depends on what you eventually negotiate for them. Waiting for a court award is going to be like Waiting for Godot, with billions of dollars in sales hanging on the outcome, with notes sitting in the back of annual reports until they go brown with age.

These companies have a choice. They can negotiate and get what cash they can. Or they can let the lawyers have most of it.


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